This report has been translated from the Arabic. Certain stylistic changes have been made.

Transcription

1 This report has been translated from the Arabic. Certain stylistic changes have been made. AL HAQ'S RESULTS OF INVESTIGATION INTO THE DEATH OF FADI HAMADNEH, A CIVILIAN DETAINED BY THE PALESTINIAN GENERAL INTELLIGENCE SERVICES Tuesday, 18 August 2009 INTRODCUTION Al Haq has concluded its investigation into the death in custody on the 10 th August 2008 of Fadi Husni Hamadneh, a 27 year old resident of the town of Asira ash Shamaliya, Nablus in the northern West Bank. The General Intelligence Services held Fadi Hamadneh in a facility located within the Palestinian National Security Forces Al Juneid detention centre in Nablus. In order to investigate the matter as thoroughly and as impartially as possible, Al Haq's field researchers took sworn witness statements from those detained with Fadi Hamadneh, and from the eyewitnesses to his arrest. An independent post mortem into Fadi Hamadneh's death was conducted and the opinion of psychologists on the effects of prolonged ill treatment in detention was sought. Al Haq's Legal Research and Advocacy Department closely scrutinised the evidence obtained in order to present as accurate and objective an account into the circumstances of the death as possible. This report will outline in detail the content of the investigation undertaken by Al Haq, the results of the independent post mortem that was conducted, and Al Haq's conclusions and recommendations on the issue. FINDINGS OF THE INVESTIGATION Fadi Hamadneh's arrest According to statements provided by Husni Hamadneh (Fadi Hamadneh's father) and Fadi Hamadneh's brothers, at between 10:30pm and 11:00 pm on 15 June 2009, several Palestinian security vehicles and a red plated governmental minibus arrived at the house of Husni Hamadneh. About 20 persons in military uniform, carrying machine guns, disembarked the minibus. One security officer approached Husni Hamadneh and asked for his name. When Husni Hamadneh asked the officer who he was and what he wanted the officer replied that he was a member of the General Intelligence Services. 1

2 Fadi Hamadneh was standing beside his father. He presented his ID card to a security officer when asked for it. A number of officers then grabbed Fadi Hamadneh by the shoulders and took him to the minibus. At no point did the security forces present an arrest warrant to identify themselves or the reason for the arrest. Fadi Hamadneh's detention Fadi Hamadneh was detained at the Al Juneid detention centre. It was twenty days before the family were allowed to visit him. In total, the family were only allowed to visit him on three occasions. According to a Palestinian Security Agencies spokesperson, Fadi Hamadneh's interrogation in detention ended on the 25 June However, the testimonies obtained by Al Haq from other detainees held with Fadi Hamadneh, contradict the official account. According to other detainees, Fadi Hamadneh was in fact interrogated on two separate occasions. On the first occasion, his interrogation ended on the 20 July He was then placed in 'Room number 4', a cell in which detainees are placed when their interrogations have ended. He was assigned the duty of distributing meals to the other detainees. On 4 August 2009, Fadi Hamadneh was interrogated for a second time. He expressed frustration when summoned for interrogation again, saying, I ve finished the interrogation. Why do you want to interrogate me again? One witness heard him shouting during his interrogation. He was then placed in 'Room number 3' on his own, a cell used for those in solitary confinement. Shabeh * The others detained with Fadi Hamadneh have reported to Al Haq that the use of torture is widespread in the Al Juneid detention centre, and that Fadi Hamadneh in particular was subjected to various forms of physical and mental stress during the course of his detention. According to the detainees, two forms of Shabeh are employed inter changeably at the centre. In the first type, the detainee is made to stand for prolonged periods of time with his eyes blindfolded and his hands tied behind his back. In the second, the detainee is forced to kneel down with his hands tied behind his back. His hands are then fastened with a cord to a metal pipe on a wall and the cord is tightened, lifting the body up and forcing it to twist sharply. The detainee is held in Shabeh positions generally for periods of up to eight to ten hours at a time with either a one hour break in the cells, or a ten minute break for interrogation. The detainees have reported that they saw Fadi Hamadneh standing in a corridor outside the cells in the first Shabeh position (eyes blindfolded and hands tied behind his back) on a virtually * Shabeh is a method of torture in which the subject is blindfolded and the body placed in awkward positions for prolonged periods. 2

3 continuous basis, apart from breaks for interrogation, between 4 August 2009 and about 1.00am on 10 August 2009 (3 4 hours before his estimated time of death). Bastinado Fadi Hamadneh was allegedly also subjected to bastinado. Bastinado is a method of torture in which the soles of the feet are beaten repeatedly with a stick encased in plastic piping. The subject is made to run back and forth for five to ten minutes after the beating to ensure that the blood flow returns to the feet, thereby removing any physical signs of the beating. According to one detainee who had himself been subjected to bastindo, an interrogator said to him after his session had ended: Now you will hear Fadi s voice whilst he is subjected to bastinado. Moments later the detainee heard Fadi Hamadneh screaming in pain. He could then hear the sound of someone running up and down the corridor outside his cell. The detainees also reported that during their interrogations it is demanded of them that they confess to various suspected activities. Furthermore, interrogations are often conducted late at night. Fadi Hamadneh's death and arranging a post mortem of the body Fadi Hamadneh's lifeless body was discovered at around 8:10 am on the 10 August 2009 by a General Intelligence Services officer, who was conducting a check of the detainees. His death was confirmed by a physician who arrived at the scene soon afterwards. Al Haq was informed of a death in custody at the Al Juneid detention centre the same day and an Al Haq field researcher went to the prison to inquire about the incident and ascertained that the deceased was Fadi Hamadneh. Al Haq spoke to the family. The family expressed to Al Haq their scepticism of the official cause of death, which was that Fadi Hamadneh had hanged himself. Al Haq informed the family of their legal right to appoint an independent pathologist to conduct a post mortem of the body. The family decided to instruct Al Haq formally to act on their behalf in seeking an independent post mortem into the death. Al Haq therefore wrote to the Palestinian Minister of Justice and the Attorney General, requesting that a family appointed pathologist be allowed to complete a post mortem of the body. The Minister of Justice and the Attorney General agreed immediately to the proposal and expressed their readiness to cooperate fully with any enquiry. Al Haq's further requested that any official post mortem be postponed until the familyappointed pathologist had completed his investigation. The request was however rejected and an official post mortem was performed the same day (the 10 th August 2009) on the order of the Attorney General. It was carried out by the Forensic Medical Institute at the Ministry of Justice. The team was headed by Dr. Ziyad al Ash hab, the Director General of the Institute, and included doctors from the An Najah National University in Nablus. 3

4 The same day Al Haq contacted several international forensic medical institutions in order to request a pathologist to travel to the region. Professor Peter Mygind Leth, PhD Deputy Chief Forensic Pathologist of the Institute of Legal Medicine at the University of Southern Denmark, and a member of the Advisory Board of Forensic Pathology of Denmark, responded to the request and agreed to travel to the Palestinian territories. Dr Leth arrived in Ramallah on the afternoon of 11 August He was briefed on the case by Al Haq. The Minister of Justice and the Attorney General were informed that he had arrived and reiterated their willingness to cooperate with his investigation. Dr. Leth, accompanied by an Al Haq staff member and a translator, went to Nablus on Wednesday, 12 August Dr Leth visited the detention centre and examined the scene of the death. He took measurements of the room and was told the location and position in which the body had been found. He was also shown the results of the official post mortem. Dr. Leth then performed a second post mortem of the body in the presence of Dr Ziyad Al Ash'hab and other members of the Palestinian team that had conducted the first examination. The results of the post mortem The results of the examination of liquids, tissue and nails taken by the first post mortem team are still pending. Accordingly, a definitive conclusion on the cause of death will not be given until those results are received. However, at this stage the following is clear: According to the findings of the Palestinian post mortem team about the position and colour of the body at the scene of death, death took place at between 04:00 am and 05:00 am on 10 August Death was caused by pressure on the carotid artery and the accompanying nerve on the right and left side of the neck, suggesting that Fadi Hamadneh died because of the pressure applied from a noose, which was bound around his neck (i.e. suffocation by suspension). The suffocation occurred when Fadi Hamadneh was still alive, and therefore death did not occur prior to the hanging. An analysis of the position and location in which the body was found, and the nature of bruises on the body, is consistent with the conclusion that the hanging took place inside the room in which Fadi Hamadneh was held and without any external intervention. 4

5 Marks of torture were not visible on the body. However it was not possible to rule out that Fadi Hamadneh had been tortured because certain types of torture do not leave any physical mark on the body; The digestive apparatus was completely void of the remains of food suggesting that Fadi Hamadneh had not eaten for as long as 4 5 days prior to death; The body was somewhat dehydrated with sunken eyes, suggesting a reduced water intake; According to x ray pictures taken before the first post mortem examination had been performed, two glass splinters, measuring approximately 1 centimetre each, were located inside the stomach. The source and type of the glass is unknown. There is no explanation for the glass being in the stomach; it could have been selfingested. In Dr. Leth's view, the Forensic Medical Institute, which conducted the first post mortem, was modern and well equipped and the post mortem itself had been of a high standard. Dr. Leth also felt that he had received all possible assistance from the Palestinian post mortem team and that he had not encountered any impediments in carrying out his investigation. On 13 August 2009, Dr Leth met with members of Fadi Hamadneh s family at Al Haq's offices, and presented the results of his post mortem examination. An English copy of Dr. Leth s post mortem examination report was given to the family. CONCLUSIONS AND RECOMMENDATIONS Conclusions A number of conclusions can be drawn from Al Haq's investigation about Fadi Hamadneh's detention and about the general circumstances of detention at the Al Juneid detention centre: For the purpose of obtaining confessions, the General Intelligence Services subjects detainees to torture, in particular to shabeh and bastinado. Furthermore, interrogators question detainees late at night, thus depriving them of sleep. Torture and sleep deprivation cause mental instability in detainees, and their infliction is in violation of international norms on the treatment of detained persons. From the evidence collected, Al Haq is not able to conclude that detainees are deprived of food as a form of torture. In the case of Fadi Hamadneh, the General Intelligence Services are in breach of several principles of the Palestinian Law of Penal Procedure No. 3 of 2001: 5

6 1. In violation of Article 29, which provides that no person may be arrested or imprisoned except by order of the competent authority, Fadi Hamadneh was arrested without the issuing of an arrest warrant by the Attorney General. 2. In breach of Articles 34 and 117, the General Intelligence Services did not apply to the Attorney General 24 hours after Fadi Hamadneh's initial detention for authorisation of his continued detention. Indeed, no citizen so far detained by the General Intelligence Services has ever been presented to the Attorney General for the authorisation of prolonged detention. The General Intelligence Services when it applies for arrest warrants applies for them from the Military Justice Authority, and not from the Attorney General. In so doing, the General Intelligence Services is breaching the provisions of Palestinian Basic Law which state in Article 101/2 that military courts shall be established by special laws. Such courts may not have any jurisdiction beyond military affairs. The extending of the jurisdiction of the Military Justice Authority and the Military Prosecutor to Palestinian civilians is unlawful; it deprives civilians such as Fadi Hamadneh of the fundamental right enshrined in Article 30/1 of the Palestinian Basic Law to seek redress in the civil judicial system. The fact that Fadi Hamadneh's interrogation ended on the 20 July 2009, and that he was then held for a further 15 days before a second session of interrogation began, without being released, demonstrates the absence of the adherence by the General Intelligence Services to even the most basic procedural norms relating to prisoners' detention. The death of Fadi Hamadneh, although it was caused by self inflicted hanging, does not necessarily mean that the General Intelligence Services is exempted from legal responsibility for the death. According to psychologists consulted by Al Haq, ongoing shabeh, interrogation for extended periods of time, and sleep deprivation can cause mental distress and hallucinations. These may drive a detainee to contemplate suicide, in order to relieve himself of the distress caused, or in order to exact revenge against the interrogator by creating a sense of guilt for the suffering inflicted. As such, those who ordered and carried out Fadi Hamadneh's torture are potentially liable for the death. It should be noted that the breaches of law which took place by the General Intelligence Services in relation to Fadi Hamadneh's detention constitute crimes which are not subject to the statute of limitations. Pursuant to Article 32 under the Basic Law: any violation of any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by this Basic Law shall be considered a crime. Criminal and civil cases resulting from such violations may not be subject to any statute of limitations... Affected civilians are therefore entitled to prosecute and hold accountable those agencies that ordered their arrest, as well as the officers involved in their detention. 6

7 Recommendations Against this background, Al Haq makes the following recommendations: 1. An ad hoc fact finding commission should be established in order to investigate the death of Fadi Hamadneh as well as the alleged infliction of torture. 2. Officers who issued the order to commit torture and those who carried it out should be brought to justice. 3. A presidential decree should be issued in order to end the encroachments made by the Military Justice Authority on the powers of the civil judiciary and the Attorney General. The decree should assign the power of arrest and detention of civilians to the Attorney General alone. 4. A fact finding commission, which involves representatives of parliamentary committees and of Palestinian human rights organisations, should be established in order to examine the conditions of arrest and detention in all Palestinian security detention centres. The commission should investigate the question of whether security agencies respect the rights of detainees, whether procedural detention guarantees are adhered to, and whether the prohibition against torture enshrined in Palestinian legislation and international human rights law is abided by. 5. Those against whom there is evidence of the commission of crimes should be prosecuted, because without any mechanism for holding to account those guilty of torture and inhuman treatment, a culture of impunity will prevail encouraging the further commission of such crimes. 6. The Council of Ministers should issue a decision to oblige law enforcement officials to respect and implement the requirements prescribed in the Palestinian Law of Penal Procedure. There should be no execution of arrest warrants which have not been ordered by the Attorney General. 7. The absence of a Palestinian law prohibiting torture and other inhuman, cruel and degrading treatment and punishment promotes the use of torture in Palestinian detention facilities. Al Haq therefore calls upon the parliamentary committees to agree on the approval of an anti torture law. Should this be untenable due to the current state of political fragmentation within the Palestinian Legislative Council, Al Haq calls upon the Palestinian President to issue a decree prohibiting the use of torture and other inhuman, cruel and degrading treatment and punishment. Palestinian civil society should continue to lobby the executive and legislative authorities until such a law is enacted. END 7